The loophole in Okiya Omtatah’s Petition against the 2022 presidential election

I have just finished reading Azimio’s Petition plus the accompanying affidavit by John Githongo. I cannot comment on the strength or weaknesses of the petition and the affidavit, but I did notice at least three loopholes in the petition and the affidavit. Similarly, I went through Okiya Omtatah’s petition and was able to note that it is based on a rather rectified figure. I will in due course write an article discussing the loopholes in Azimio’s petitions, but as for now allow me to detail the loophole in Okiya Omtatah’s petition.

Okiya Omtatah’s petition is premised on the assumption that none of the presidential candidates attained the constitutional requirement of garnering more than half of the votes cast (50% + 1 vote). The petition arrives at this conclusion by the following base assumption:

14. After the official closure of voting on 9th August 2022, at the Third Press Briefing of the day, the IEBC Chairperson announced that the voter turnout stood at 65.4%, based on the verification of the KIEMS kits which were functional during the process of voting

Okiya Omtatah goes ahead to perform elaborate calculations to arrive at turnout discrepancies when expected turnout is compared against the turnout used for the final declaration of the presidential election. For those interested in the elaborate calculations, here we go:

65.4% KIEMS kits voters + X = Total voter turnout

X = Undeclared (untallied) total manual voters.

65.4% of 22,120,458 = 14,466,779.

Hence, Total voter turnout = 14,466,779 + X.

Untallied votes = Total voter turnout – Declared voter turnout.

That is: (65.4% voter turnout + X) – Declared votes

= (14,466,779 – 14,326,641) + X

= 140,138 + X.

The point of the above calculation was so as to arrive at 140,138 votes as votes that were not accounted for. When I did the same calculation using 14,326,751 (the total turnout in the current form 34C), I got a figure of 140,029. The entire petition entirely hinges on the above calculation, with the intention that there were at least 140,138 votes that were uncounted for in the total tallies used by Chebukati to declare William Ruto President-Elect.

But here is the problem, Chebukati did correct the 65.4% anomaly with a new anomaly, 64.6%. In the video below you can hear Chebukati announcing that the total KIEMS kit turnout is 64.6%.

I call the new turnout percentage of 64.6% an anomaly because Chebukati also provided the figure of 14,164,561 voters as the actual number of voters that were represented by the 64.6%. However, we know from IEBC’s published register that the total number of registered voters for the 2022 general elections is 22,120,458. Now 14,164,561 divided by 22,120,458 then multiplied by 100 comes to 64.0337600605%, which can be rounded off to 64.03% or 64.0%. The question that someone should ask themselves is how did IEBC arrive at 64.6% instead of 64.03%? This question is pertinent because 64.6% of total registered voters are 125,255 more voters compared to 64.03% of registered voters.

Given that IEBC corrected the announced turnout from 65.4% to 64.6%, and also provided 14,164,561 voters (64.03%) as the actual number of voters as the final turnout as reported by KIEMS kits, then Okiya Omtatah’s petition ought to have done two calculations; one based on 64.6%, and another based on 14,164,561 voters (64.03%). Let us do the same calculation by Okiya Omtatah using these two alternative figures:

64.6% KIEMS kits voters + X = Total voter turnout

X = Undeclared (untallied) total manual voters.

65.4% of 22,120,458 = 14,289,816.

Hence, Total voter turnout = 14,289,816 + X.

Untallied votes = Total voter turnout – Declared voter turnout.

That is: (64.6% voter turnout + X) – Declared votes

= (14,289,816 – 14,326,641) + X

= -36,825 + X (negative implies that there were more votes declared compared to reported turnout)

Hence: X can be said to be the same as 36,825 votes; where one can argue that 36,825 were the voters that voted manually.

The above calculation removes the 140,138 untallied votes (before considering manual voters) and introduces 36,825 votes in excess of the votes that were reported as turnout by KIEMS kits. The figure of 36,825 is however too low compared to the 75,000 voters that were expected to have voted manually. The figure of 75,000 is arrived at by considering that there were at least 241 polling stations that voted manually, that the national average number of voters per polling station is 480, and that the final national turnout was 64.77%. That means calculating the turnout using 64.6% still leaves one with about 38,000 expected voters to account for – though one may just conclude that voter turnout in the places where they voted manually was a paltry 31.8%. A 31.8% turnout in places where people voted manually can be supported by the observation that in these places voting started way past 11 AM, so most voters could have given up and gone back home before voting.

This then would mean that probably the calculation ought to be done using the raw reported turnout number of 14,164,561 voters who voted via KIEMS kits. If this method, is used, we arrive at the following:

14,164,561 KIEMS kits voters + X = Total voter turnout

X = Undeclared (untallied) total manual voters.

Hence, Total voter turnout = 14,164,561 + X.

Untallied votes = Total voter turnout – Declared voter turnout.

That is: (14,164,561 + X) – Declared votes

= (14,164,561 – 14,326,641) + X

= -162,080 + X (negative implies that there were more votes declared compared to reported turnout).

Hence: X can be said to be the same as 162,080 votes; where one can argue that 162,080 were the voters that voted manually.

Similar to the steps we went through in the previous calculation, this method gets rid of the 140,138 untallied votes but introduces 162,080 votes as the votes that were cast manually. But remember we need to statistically expect 75,000 voters to have voted manually from the 241 polling stations, which implies that this method introduces a new figure of 87,080 votes that IEBC has not accounted for. Remember that William Ruto passed the 50% + 1 threshold by a paltry 69,572 votes, hence not being able to account for 87,080 votes will still cast doubt on the figures announced by Chebukati. One could still argue that the number of polling stations that exercised manual voter identification was way more than the announced 241. That is, there were voters in polling stations where KIEMS kits were working who couldn’t be identified by the KIEMS kits, hence were allowed to vote manually.

Next, we will discuss the loopholes in Azimio Petition. Hopefully, I will be able to go through all the petitions to also note any loopholes in them.